O’Neill v Kwon

1. [1]

   The Plaintiff seeks orders to restrain the Defendant from commencing further proceedings against him and to stay those that have already been instituted pursuant to the Vexatious Proceedings Act 2008 (NSW)(the Act). He also seeks an order that the Defendant be restrained from lodging caveats on land owned by him or by companies associated with him.

Background to the proceedings

1. [2]

   The Plaintiff, Mr O’Neill, is a solicitor admitted to practice by this Court in 1977. He practised in partnership in Manly with Robert Kaufmann as Kaufmann and O’Neill. He retired from legal practice in 2007. Mr O’Neill says that no successful complaints were made against him in 30 years of practice.

2. [3]

   Mr O’Neill says that the only professional contact he has had with the Defendant, Ms Kwon, was a short conference that occurred, to the best of his recollection and belief, sometime during 1990 at the offices of Kaufmann and O’Neill in Manly. He said he was consulted by Ms Kwon about certain legal matters. He recalls that she was talking fast and was not listening to what he was saying. After the conference he decided that he was not able to assist her. He returned the documents to her that she had left with him. After that initial conference he has had no further professional contact with Ms Kwon or any members of her family.

3. [4]

   In proceedings instituted subsequently by Ms Kwon, and as the basis for a number of caveats lodged against properties associated with Mr O’Neill, is a claim by Ms Kwon that Mr O’Neill owes her money because her brother is supposed to have paid to Mr O’Neill money as advance payment of legal costs many years ago. Mr O’Neill says that he has never met any of Ms Kwon’s family and has never met Ms Kwon’s brother who he understands died some years ago.

4. [5]

   A sense of what is being claimed by Ms Kwon can be discerned from a letter she wrote to Mr O’Neill on 27 August 2012. The letter reads as follows:

5. [6]

   A further sense of Ms Kwon’s claim can be obtained from this document which forms part of a Statement of Claim filed against Mr O’Neill:

Proceedings

1. [7]

   In 1998 Mr O’Neill was served with a Statement of Claim filed in the District Court claiming $870,000. Mr O’Neill sought to strike out the proceedings as not disclosing any cause of action. The proceedings were struck out by Delaney DCJ on 9 June 1998 when there was no appearance by Ms Kwon. On 3 July 1998 Ms Kwon filed a Motion and affidavit to have the matter restored to the list. Judge Patten ordered Ms Kwon to file an amended Statement of Claim within 28 days. That was not done and on 23 September 1998 the Registrar struck the matter out as no amended pleadings had been filed.

2. [8]

   In October 1998 Ms Kwon filed a further Motion and Amended Statement of Claim to have the matter restored to the list. That Motion was heard by Downs DCJ on 13 November 1998. His Honour dismissed the Motion and ordered that no further documents were to be filed until the costs ordered to that time had been paid.

3. [9]

   On 13 November 1998 Ms Kwon filed a Notice of Appeal to the Court of Appeal. The matter came before the Registrar of the Court of Appeal on 22 March 1999. It was adjourned to 12 April 1999 because there was no appearance by Ms Kwon. On 12 April 1999 when there was again no appearance by Ms Kwon that matter was struck out.

4. [10]

   On 19 June 2001 Ms Kwon filed a further Motion in the Court of Appeal seeking leave to extend time. That Motion came on for hearing on 25 June 2001 when it was dismissed. On 30 July 2001 Ms Kwon filed a further Motion seeking leave to extend time.

5. [11]

   In the meantime, the Registrar of the Court of Appeal had raised with Ms Kwon a number of times the need to get legal advice because she had purported to appeal from Judge Downs’ judgment when she needed leave to do so. Instead of doing that, Ms Kwon filed a Summons in the Court of Appeal on 31 August 2001 seeking leave to appeal from the decision of the Registrar on 20 August 2001. In fact all that had happened on 20 August 2001 was that Ms Kwon’s Notice of Motion filed 30 July 2001 had been stood over generally pending the filing of a summons seeking leave to appeal against Judge Downs’ order of 13 November 1998.

6. [12]

   On 29 October 2001 the Summons filed on 31 August 2001 was dismissed as incompetent by the Registrar.

7. [13]

   On 1 November 2001 Ms Kwon filed a Notice of Motion to review the Registrar’s decision dismissing the Summons filed 31 August 2001 as incompetent. That Motion came on for hearing before the Court of Appeal constituted by Sheller, Stein and Heydon JJA on 12 April 2002.

8. [14]

   The judgment of the Court of Appeal given by Heydon JA (Kwon v O'Neil [2002] NSWCA 116) determined that the decision of the Registrar to dismiss the summons on 29 October 2001 was unquestionably correct. In those circumstances Ms Kwon’s Notice of Motion filed 1 November 2001 was dismissed.

9. [15]

   Ms Kwon then sought special leave to appeal to the High Court. The application was heard by Gummow and Callinan JJ and Ms Kwon was assisted by an interpreter. During the course of her oral submissions Ms Kwon said through the interpreter:

10. [16]

    On 5 November 2002 the application for special leave was refused on the basis that the Court of Appeal’s decision was plainly correct.

11. [17]

    On 21 October 2013 Ms Kwon filed a Summons in the Common Law Division of this Court naming Mr O’Neill as the First Defendant and the “ANZ Mortgage Section” as the Second Defendant. The type of claim was described as follows:

12. [18]

    The orders claimed were for the ANZ to remove two mortgages and for an order for levy of two properties at “38, Gouldsbury, Mosman” (sic) and “19, Central Avenue, Many” (sic). The relief went on to say “If get at above for levy of two properties, the rest is must be by cash, from the $10, million refund, advance of contracted lawyer fees”.

13. [19]

    It is important to set out again what appears in the Summons:

14. [20]

    Mr O’Neill moved by Motion filed 28 November 2013 to strike the proceedings out as not disclosing any cause of action. On 11 December 2013 Bellew J dismissed the proceedings and ordered Ms Kwon to pay Mr O’Neill the sum of $3000 by way of lump sum costs.

15. [21]

    On 24 July 2014 Ms Kwon filed a Summons in the Equity Division of this Court against Mr O’Neill seeking the following relief:

16. [22]

    Under the claim for relief Ms Kwon had written:

17. [23]

    On 14 August 2014 Ms Kwon by Summons sought an extension of a caveat over the Gouldsbury Street property and others.

18. [24]

    Mr O’Neill sought to strike out both summonses and those Motions came before White J on 26 August 2014. His Honour gave judgment on that day: Kwon v O’Neill [2014] NSWSC 1221. His Honour summarised the background as follows”

19. [25]

    Justice White noted that the basis for seeking summary dismissal lay partly in the history of earlier litigation brought by Ms Kwon against Mr O'Neill and also upon the unenforceability of the claim made by Ms Kwon in the absence of any writing signed by Mr O'Neill to evidence the agreement upon which she relied. Justice White then summarised briefly the District Court proceedings which went to the Court of Appeal and the proceedings before Bellew J.

20. [26]

    In dismissing both summonses White J said:

21. [27]

    His Honour then went on to note that the summonses before him concerned an alleged agreement for the transfer of the Mosman property. However, Ms Kwon accepted that there was no note nor memorandum in writing (to comply with s 54A Conveyancing Act 1919 (NSW)) nor was there anything that could arguably give rise to any plea of part performance. In those circumstances his Honour dismissed both summonses.

22. [28]

    Ms Kwon sought leave to appeal to the Court of Appeal against White J’s orders dismissing the proceedings. On 22 April 2015 the Court of Appeal refused leave to Ms Kwon to appeal: Kwon v Cha; Kwon v O’Neill [2015] NSWCA 111. It did so on the basis that no error was demonstrated in White J’s reasons for dismissal.

23. [29]

    Ms Kwon thereafter sought special leave to appeal to the High Court from the Court of Appeal’s judgment. Special leave was refused on 12 November 2015.

24. [30]

    On 21 April 2016 Ms Kwon initiated proceedings in the District Court (2016/122738) against the ANZ Bank which is the mortgagee of the Gouldsbury Street property. The relief claimed is as follows:

25. [31]

    The affidavit filed by Ms Kwon in support of the summons again made reference to her younger brother paying money to Mr O’Neill some 28 years ago. She claimed that on present day values that money was now worth more than $20 million. On the basis that Mr O’Neill owed this money, apparently to Ms Kwon, she wanted the mortgages removed from the Gouldsbury Road and Central Avenue properties so that they could be transferred to her.

26. [32]

    On 10 May 2016 the District Court determined that it had no jurisdiction to grant the relief sought in the summons.

The caveats

1. [33]

   On 8 April 2013 Ms Kwon lodged a caveat over the property in folio identifier 2/523340 (apparently the Gouldsbury Street property). The estate or interest claimed was as follows:

2. [34]

   That was caveat number AH646677F.

3. [35]

   On 21 July 2016 Ms Kwon lodged another caveat over the land in folio identified 2/523340. The estate or interest claimed was as follows:

4. [36]

   On 21 July 2016 Ms Kwon also lodged a caveat over land in folio identifier 6/26171, a property owned by a company Ilejazz Pty Ltd at 47 The Corso, Manly. Mr O’Neill is the sole shareholder and director of that company. A copy of the caveat is not available but its number is AK612667.

5. [37]

   On 12 August 2016 Ms Kwon filed a summons in the Equity Division of this Court to extend those three caveats. The affidavit sworn in support recited the same matters as had been contained in the affidavit in the District Court proceedings commenced in April 2016.

6. [38]

   On 24 August 2016 Darke J dismissed Mrs Kwon’s summons, holding not only that the claims in the caveats were the same as had been determined against her by Bellew J and White J (referred to above), but also that her claims had no substance.

7. [39]

   On 24 May 2013 Ms Kwon lodged a caveat over the land in folio identifier 11/584154. That land was owned by a company called Togi (Number 1) Pty Ltd. The evidence does not disclose the relationship between that company and Mr O’Neill. Nor is it land identified in the Schedule to the Amended Summons.

Legislative provisions

1. [40]

   Relevant provisions of the Vexatious Proceedings Act 2008 (NSW) are these:

2. [41]

   The principles associated with making orders under the Act have been discussed in a number of cases. In Attorney General in and for the State of NSW v Gargan [2010] NSWSC 1192 I said:

Consideration

1. [42]

   What is clear from all of the proceedings instituted by Ms Kwon and from the submissions she made in the present proceedings is that she has a fixation or obsession about her brother having provided funds to Mr O’Neill. There is absolutely no evidence that this obsession is grounded in reality. Indeed, Mr O’Neill’s evidence that he has never met any other member of her family points to the obsession being based on a delusion.

2. [43]

   Even if, contrary to my view, there was an event when Ms Kwon’s brother paid some legal costs to Mr O’Neill, that would not provide any basis for the claims that Ms Kwon has made. She does not, for example, demonstrate how in any way recognised by the law she has the right to make the claim against Mr O’Neill. The claim appears to be in excess of 20 years out of time and would not therefore be maintainable under the Limitation Act 1969 (NSW) even if Ms Kwon somehow had the right to bring the proceedings – see s 63(1). The amount that Ms Kwon claims is not justifiable on any material that she has put forward. The claim in relation to an agreement with Mr O’Neill that he would transfer property to her is not only denied by him but, as White J held, would be unenforceable in any event because of the lack of writing.

3. [44]

   Those matters alone show that the proceedings have been instituted and pursued without reasonable ground.

4. [45]

   Further, inasmuch as earlier proceedings based on the same claim have been dismissed, the subsequent institution of proceedings based on the same matters must be regarded as an abuse of the process of the Court.

5. [46]

   It is not necessary to determine if the proceedings have been conducted in a way so as to harass or annoy the Defendant, although it is clear that they do in fact harass and annoy him, because I consider that there may be mental health issues which explain Ms Kwon’s behaviour in both instituting proceedings and in lodging the caveats. I base that view not only on the way she presented and spoke at the hearing (making full allowance for language difficulties) but also on an assertion made by her in a document entitled “Reply(2nd)” filed by her in these proceedings that Prince Andrew witnessed the payment of the money by her brother to Mr O’Neill.

6. [47]

   I am satisfied because the proceedings have been instituted or pursued without reasonable ground and that some are an abuse of the process of the Court that all of the proceedings instituted by Ms Kwon are vexatious proceedings within the meaning of s 6. I am also satisfied that these proceedings have been frequently instituted within the meaning of s 8. I take into account in that regard the requests for re-listing and reinstatement of proceedings as well as the appeals that Ms Kwon has pursued. As the authorities have made clear the number of proceedings may be small if the proceedings are an attempt to re-litigate an issue already determined against the person.

7. [48]

   As far as the lodgement of caveats is concerned, I note first that s 8(7)(c) of the Act gives to the Court the power to make any other order that the Court considers appropriate in relation to the person. A caveat is, in effect, a statutory injunction. In that way it is not unrelated to instituting proceedings. Moreover, the history in the present matter shows that whenever a lapsing notice has been given in respect of a caveat lodged by Ms Kwon she has instituted proceedings to extend the caveat. All of those proceedings have been unsuccessful.

8. [49]

   Mr O’Neill should not be in the position where caveats are constantly lodged against his properties and properties of companies with which he is involved, necessitating the issuing of lapsing notices. The mere fact that a caveat is on the title to his properties is a detriment he suffers and has the potential to cause financial harm if the caveat was lodged at a crucial time when he might be endeavouring to deal with the properties.

9. [50]

   In addition, s 74O of the Real Property Act 1900 (NSW) deals with lodgement of successive caveats claiming the same interest. Although that section provides that a further caveat has no effect without leave having been given by the Court for its lodgement that provision gives no certainty about whether the Registrar-General will note the caveat on the title. As Young J noted in Taylor v Commonwealth Development Bank of Australia (1992) ANZ ConvR 161, it may be difficult for the Registrar-General to gauge whether a second caveat is on the same grounds as the first especially where the caveats are differently worded. Although in a slightly different context, I note that in Verebes v Verebes (1995) 7 BPR 14,408 Young J held that there may be circumstances where a court would award an injunction against the further lodgement of a caveat.

10. [51]

    Similarly, in Stocks and Holdings (Imperial Arcade) Ltd v Fink (1965) 82 WN (Part 1) (NSW) 386 McClelland CJ in Eq granted an injunction to a registered proprietor to restrain the lodgement of a caveat where the probable injury which the proprietor would have suffered from unsustainable caveats could not be remedied adequately by damages. Where the issue has previously been tried and determined it may be appropriate for the Court to issue an injunction against any further litigation or lodgement of caveats about the same matter: Lethbridge v Mitchell (1887) 8 LR (NSW) 249 at 254.

11. [52]

    In my opinion, whether by the power given in s 8(7)(c) of the Vexatious Proceedings Act or in Court’s inherent jurisdiction, I consider that an order should be made preventing the Defendant from lodging any further caveats on Mr O’Neill’s land or on land owned by companies associated with him.

Conclusion

1. [53]

   The Plaintiff accepted that there were no proceedings on foot against him brought by Ms Kwon at the time of the hearing of these proceedings. Prayer 2 is not pursued.

2. [54]

   I note that at the conclusion of the hearing I made interlocutory orders restraining Ms Kwon from commencing further proceedings against Mr O’Neill and from lodging caveats over land listed in the Schedule to the Amended Summons. Those orders should now be made permanent. The Plaintiff does not seek costs.

3. [55]

   Accordingly, I make the following orders: